Citizen Green: A path to ending the partisan gerrymander

By the thinnest of margins North Carolina voters have elected a Democratic governor, unless the GOP conspires through lawsuits and legislative chicanery to have the election stolen.

Assuming he takes the oath of office in January, Roy Cooper is still in for a tough time with a Republican-controlled General Assembly armed with supermajorities to overturn his vetoes.

Despite North Carolina being a state that’s politically split right down the middle — as of this week, Cooper holds 49.0 percent of the vote to Pat McCrory’s 48.2 percent — Republicans control 35 out of 50 seats in the state Senate, and they actually picked up a seat in the southeast corner of the state. In the House, the Democrats exploited the backlash against HB 2 to gain four seats in urban Wake and Mecklenburg counties, but lost three seats in the Sandhills region and mountain west. As it stands, the Republicans control 61.7 percent of the votes in the House, more than the 3/5 majority they need to overturn the governor’s veto.

It wasn’t quite a Republican wave election, but it was pretty good to the GOP. While the Democrats won the crucial prizes of the attorney general’s office and a state Supreme Court seat, the Republicans flipped three council of state offices — commissioner of insurance, superintendent of public instruction and treasurer — and retained a US Senate seat by a whopping six points.

And yet there is a light flickering through the gloom for Democrats, however dimly, thanks to a distant federal court decision in Wisconsin that came down just three days before Thanksgiving. For the first time, a state legislative redistricting plan has been struck down by the courts as an unconstitutional partisan gerrymander.

Partisan gerrymandering has been around almost since the birth of the republic as a way for the majority party to cherrypick their voters and insulate themselves from challenge. As a consequence, in North Carolina we’ve wound up with one outrageous and unpopular bill after another: HB 2, the opt-out provision for magistrates to refuse to perform same-sex marriages, a law preventing municipalities from recognizing unofficial IDs used by undocumented people, laws restricting access to abortion and a number of bills designed to take control away from cities.

Since roughly the passage of the Voting Rights Act in 1965, the courts have found racial gerrymandering to be a violation of the Equal Protection Clause of the Fourteenth Amendment. However unsavory, partisan gerrymandering has essentially been treated as a legal function of the grimy business of transacting political power. But federal judges are increasingly wary.

As part of a panel of three judges that overturned the previous North Carolina congressional districting map as an impermissible racial gerrymander, Judge Max Cogburn also took aim at partisan gerrymandering in his concurring opinion with the February 2016 decision, slamming it as an “affront to democracy” and “in disharmony with fundamental values upon which this country was founded.”

“Elections should be decided through a contest of issues, not skillful mapmaking,” Cogburn wrote. “Today, modern computer mapping allows for gerrymandering on steroids as political mapmakers can easily identify individual registrations on a house-by-house basis, mapping their way to victory.”

In Wisconsin, another three-judge panel found that Republican lawmakers discriminated against Democratic voters when they “cracked” them by dividing them among many districts where they would fall short of a majority, and “packed” them in a few districts where their favored candidates would win by such large margins that it would dilute the Democratic vote statewide. Sound familiar?

The plaintiffs in the Wisconsin lawsuit are expressly trying to get the attention of US Supreme Court Justice Anthony Kennedy, who wrote in a concurring opinion for a 2004 redistricting case that he “would not foreclose all possibility of judicial relief if some limited and precise rationale were found to correct an established violation of the Constitution in some redistricting cases.”

If the Supreme Court agrees to hear the case on appeal, Kennedy might find the tool he needs in a measure devised by the plaintiffs called the “efficiency gap,” which measures so-called “wasted” votes — those cast for losing candidates and those in excess of 50 percent plus one cast for victorious candidates. When one party’s total wasted votes outnumber the others, that’s the efficiency gap. Based on historical data, the plaintiffs propose that any redistricting plan with an efficiency gap exceeding 7 percent be considered evidence of a “partisan effect.”

During the last election, 53.3 percent of the 4.6 million votes cast for congressional candidates in North Carolina went to Republican candidates, and yet Republicans won 10 out of 13 seats. The fact of the matter is that the lines are drawn to maximally distribute Republican votes and translate into the largest possible number of legislative seats. Based on a comparison of wasted votes for candidates in both parties, the North Carolina congressional map has a pro-Republican efficiency gap of 19.3 percent.

The Democratic-leaning cities in North Carolina are effectively disenfranchised, and it’s no surprise that our elected representatives aren’t listening to us.

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